By Adedayo Debo-Akande

It can be argued that the most contentious issue that arises for determination in a fractured relationship revolves around the custody of children, who are minors.

Matrimonial cases pertain to issues, which affect the family and children are always the most vulnerable of the parties involved.

Award of custody of the children of a marriage that has broken down irretrievably is governed by Section 71(1) of the Matrimonial Causes Act 1990, which enjoins the Court in proceedings relating to custody, guardianship, welfare, advancement or education of children of the marriage, to take the interest of the children as paramount consideration and the Court in this regard are given wide discretionary powers, which they can exercise according to the peculiar circumstances of each case.

Many times, battling spouses are too involved in their own issues to give a dispassionate consideration to the best interest of the child(ren). It is therefore no surprise to find many cases of a party either violating judicially backed custodial rights or outrightly denying the other party access to the child(ren) of the marriage.

Each year, many children are subjected to parental abduction as a result of friction between spouses or the tension generated from a custody battle. This article addresses the lacunae in Nigerian case law and statutes as touching the many incidences of parental abduction, which unfortunately is not wholly addressed under the Nigerian Legal System.

The question which begs to be answered is whether in the light of international regulations and judicial decisions, the unlawful retention or taking of a child without the consent of the other spouse and/or with no recourse to custodial rights, deserves definite regulatory attention via the alteration of the existing laws, in addition to the exploration of remedies that may be available to the distressed parent.

Custody following spousal separation: parental abduction and evaluating the applicable laws The care, custody and welfare of children (under the age of 18) in Nigeria are functions of a detailed regulatory framework. These laws include but are not limited to the Nigerian Constitution, the Matrimonial Causes Act, the Child’s Right Act, the Family Court of Lagos State (Civil Procedure) Rules 2012 and also the court as the institution that gives judicial backing to these laws.

The Court of Appeal in determining the issue of custody of children in matrimonial proceedings opined in Ojeniran v. Ojeniran Per Chidi Nwaoma Uwa, JCA (Pp 23 – 28 Paras F – D) as follows:

“In considering who to award custody of a child to, the court is more concerned with the welfare of the child as a whole, which includes day to day care of the child, his moral upbringing, physical development/care and mental state, as well as education, a balanced life irrespective of the fact that the parents are unable to live together and jointly raise the child under the same roof.”

Custodial rights are granted by the courts after a rigorous process and upon being satisfied that the child(ren) will be best taken care of by the party that has been granted the said custody.

However, we find in practice many instances where an estranged spouse resorts to “self-help” remedies in dealing with custody disputes rather than complying with existing orders or refusing to resolve disputes with the other parent through civil processes.

Parental child abduction occurs when one parent, without either legal authority or the permission of the other parent, takes a child from the parent who has lawful custody.

There are two main ways this happens. One parent violates a custody agreement and takes off with the child. There is no custody agreement in place, and one parent leaves with the child without consent from the other parent.

There is no statutory provision concerning parental abduction in Nigeria, however the Child Rights Act, which was adopted into our federal laws in 2003 and has been promulgated into law in 24 of the country’s 36 States and the Federal Capital Territory, makes provision for the abduction, removal and transfer of a child from lawful custody.

Section 27 of the Child Rights Act 2003 is reproduced below: ‘No person shall remove or take a child out of the custody or protection of his father or mother, guardian or such other person having lawful care or charge of the child against the will of the father, mother, guardian or other person. (2)A person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction‐(a) where the child is unlawfully removed or taken out of Federal Republic of Nigeria‐(i) with intention to return the child to Nigeria, to imprisonment for a term of fifteen years; or (ii) with no intention to return the child to Nigeria, to imprisonment for a term of twenty years; (b) where the child is unlawfully removed or taken out of the State in which the father, mother, guardian or such other person who has lawful care of the child is ordinarily resident, to imprisonment for a term of ten years; or (c)in any case, to imprisonment for a term of seven years.

The above stated provision captures within it instances of international and domestic child abduction. A cursory look suggests that a person having parental responsibility or whose custodial rights have been unlawfully interfered with can come under this provision to seek redress. However, it is in doubt the extent of the application and/or enforcement of the above stated provision in practice.

Hague convention on the civil aspects of international child abduction The convention was designed to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.

The removal or the retention of a child is to be considered wrongful where: a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Nigeria is not a signatory to this convention therefore, it is unable to give effect to its provisions. Canada and the United States of America

Comparatively, Canada is a party member to the Hague Convention11 and it has been adopted by all Canadian jurisdictions. In addition to the civil remedies available under the convention, Section 282 and 283 of the Canadian Criminal Code 12 criminalises parental abduction in the presence and absence of a custody order respectively. The said section is reproduced below: 282 (1) Everyone who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order or a parenting order made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, of the possession of that child is guilty of(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction.

283 (1) Everyone who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, whether or not there is an order referred to in subsection 282(1) in respect of the child, with intent to deprive a parent, guardian or any other person who has the lawful care or charge of that child, of the possession of that child, is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction.

The United States of America is also a party member to the Hague Convention. Interstate and International parental abductions have been criminalised in many states especially when it is a violation of a custody order.

In deciding cases on international parental abduction, two statutes are in view: The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Hague Convention on the Civil Aspects of International Child Abduction, which are often applied harmoniously to reach a just conclusion.

Case study: The darko children Kwabina Essien Darko (Essien or Father hereafter) and Akosia Kuukuwa Mkrumah (“Kuukuwa” or “Mother” hereafter), both citizens of Ghana were married with four children. The marriage broke down and they had to physically separate, they eventually physically separated.

Prior to the separation, they had been residing first in Maryland and later in Washington, D.C. All four children were born in the United States and therefore have U.S. citizenship. The children also have citizenship from Ghana, through their parent’s nationalities.

The Mother had to relocate to Gauteng, South Africa due to employment reasons, while the children stayed with their father in Washington DC. She kept commuting between Gauteng and Washington until she finally relocated to Gauteng, South Africa with the children. The facts of the case revealed that the Mother misled the Father to get him to agree to the relocation from the United States to South Africa, only to inform him of their separation once they had arrived in Gauteng.

Mr. Darko kept shuttling between Gauteng and Tanzania (where he had relocated to in 2009) to visit the children until he eventually relocated to Gauteng, South Africa in August 2010 although parties maintained separate residences.

The minors attended school in Gauteng from 2009-2015. Until Kuukuwa relocated with the children, both Kuukuwa and Essien shared physical custody. In March 2015, Kuukuwa removed the children from South Africa without their father’s consent, under the false pretence of vacation travel.

In addition to a divorce petition filed in Ghana in 2015 upon discovery of Kuukuwa’s actions, Essien also filed an Originating Motion seeking joint physical and legal custody and the return of the children to South Africa. The suit was filed in the Family Court of Gauteng Province in the Gauteng Magisterial District. On September 6, 2015, that Court entered an Ex Parte Order compelling the return of the children back to South Africa and to desist from further taking them (the children] from South Africa or anywhere without the consent of the Father.

In 2016, the Mother, through counsel, filed a Motion on Notice in response requesting that the Court dismiss this case and vacate the Ex parte Order, and based on the statements made in her application, the said order was vacated (the matter is now on appeal).

Further to this, through the counsel she filed a complaint for Custody and Child Support in Montgomery County Circuit Court, located in Rockville Maryland, USA. That matter is pending as the Maryland Court will not take any further steps until personal service, in accordance with Maryland law is achieved and the Court is duly notified.

Conclusion/Recommendations This article has highlighted some interesting issues regarding parental abduction and the remedies afforded by our laws or the lack of it; future research is however desirable in this area.

What cannot be disputed is the need for a child to have ample opportunity to benefit from the individuality of both parents and this is unachievable where a person occupies the position of judge, jury and executioner in his/her own case.

The Darko’s case is instructive as it shows how the action of an estranged spouse can deprive a child or children from a parent and vice-versa, the dearth of legislative and judicial pronouncements that would otherwise act as precedents and the little to no remedy available to a distressed parent.

Ordinarily, where a person violates an order of Court -(a custody order), a contempt action can be instituted against such errancy. The futility of this is, however, glaring in a case where the offending party has fled the shores of the country and cannot be apprehended.

This article contends that the remedial approach is not only to identify and recognise the evil that is parental abduction but also to create an avenue where a child wrongfully retained or abducted can be safely returned to their habitual place of residence.

It is the hope that Nigeria will elect to be a signatory to the Hague Convention, reflecting and enforcing its provisions through our domestic legislations. Despite the many complexities from the diversity of legal systems, it is always through the courts that the areas of freedom and administration of justice must be affirmed.

Written by Debo-Akande, a lawyer from Lagos.